Abstract
I seek to ascertain the proper place of international law, relative to alternative responses, in the redress and restraint of mass atrocity. This task requires that we identify the circumstances in which these alternatives prove at least equally if not more effective. We international lawyers are too quick to assume that the best responses to these recurrent episodes, both ex post and ex ante, lie within our professional domain, and that the current, widely acknowledged limitations of this legal field body would best be cured by enlarging its scope and strength. I show that, to the contrary, several of the most promising, innovative anti-atrocity initiatives in recent years, on both the national and global planes, depend scarcely at all little on international law, strictly speaking. International law can often do very little even to institutionally bolster these promising developments, despite the fact that the humanitarian ideals such law embodies undoubtedly inspire them.
Osiel is the Aliber Family Chair in Law at the University of Iowa. An earlier version of this chapter appeared in “The Law of the Future,” Hague Institute for the Internationalization of Law, 2012.
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Notes
- 1.
Williams et al. 2012.
- 2.
The terms “non-juridical,” “non-legal,” and “extra-legal” will be used interchangeably here.
- 3.
This view reaches it apogee in the contention that any genuine “rule of law” at the international level requires a full “constitutionalization,” by which all applicable legal sources and rule-making or enforcing bodies are arranged in a single hierarchy. See, e.g., Fassbender 2009 (arguing that the UN charter has constitutional status); Dunoff and Trachtman 2009 (collecting papers discussing world constitutionalism).
- 4.
See, e.g., Leebaw 2011 (arguing that optimal responses to mass atrocity have in many places been distorted and misdirected due to liberal law’s inherent predisposition to ascribe collective wrong and structural injustice to the intentional conduct of discrete individual persons).
- 5.
This concern finds keen expression, for instance, in Pauwelyn 2011, p. 3 (pondering whether international lawyers should “insist on formalism and exclude ‘informal law’ from its scope to maintain international law’s independence and stress the point that “informal law” may be inappropriate as a power instrument of the strong…”).
- 6.
In fact, international lawyers have generally been careful to restrict the scope of international legal institutions where national ones can adequately respond to mass atrocity. Hence, under the “complementarity” doctrine, the jurisdiction of the International Criminal Court is limited to circumstances where national courts prove themselves “unwilling or unable” to investigate or prosecute. Eric Posner defines “global legalists” as people who “believe that international political disputes should, as much as possible, be resolved according to law and by legal institutions.” Posner 2009, p. 25. Public international lawyers in the real world, however, are much more savvy operators, acutely attentive to such law’s limitations, and to the potential strengths of national institutions, than this characterization suggests.
- 7.
Evans 2008.
- 8.
Under the moniker of international “legalization,” political scientists now study the frequent “delegation” by states of policy issues to international institutions with law-making and enforcement authority. See, e.g., Goldstein et al. 2001 (employing a definition of legalization as involving obligation, precision, and delegation of disputes to a third-party decision-maker); Brutsch and Lehmkul 2007. The initiatives examined here, in contrast, involve no such delegation.
- 9.
International lawyers have also shown, to be sure, acute recognition of the need to accommodate political forces that insist upon the right to influence the functioning of international legal institutions aimed at redressing mass atrocity. These are political forces which, if not placated, could effectively nullify the operation of such legal institutions altogether. This sort of accommodation is particularly apparent in how the Rome Statute for the International Criminal Court accords the permanent members of the UN Security Council considerable influence over the cases and situations that the Office of the Prosecutor may investigate.
- 10.
Pauwelyn 2011, p. 3.
- 11.
Multinational corporations can threaten, for instance, to relocate their headquarters to other countries, thereby potentially defeating the exercise of legislative and adjudicatory jurisdiction (including taxation authority) over them by states of initial incorporation.
- 12.
Kant 1997.
- 13.
In fact, it may be that many of today’s international human rights, particularly social, economic and cultural rights, may fall under the category of imperfect duties. This would mean that “there is a huge world of legitimate human rights beyond the limits of law.” Sen 2006, pp. 2913, 2927; see also Sen 2001. “Many human rights can serve as important constituents of social norms, and have their influence and effectiveness through personal reflection and public discussion, without their being necessarily diagnosed as pregnant with potential legislation.” Sen 2001, p. 7. Sen is here chiefly examining the nature of human rights, but he can also be seen as implicitly seeking to “save” human rights discourse from self-professed adherents who, in claiming too much for it (i.e., in legal recognition and coercive means of enforcement), threaten to call the larger enterprise into disrepute. Much the same spirit informs the present reflections, in their argument that our several anti-atrocity initiatives do more good by continuing to operate independently of international law than by being given a greater foothold within it. In the relation between these initiatives and international law, each side will often do better without too close a link to the other.
- 14.
Sen 2006, p. 2925.
- 15.
Ibid., p. 2927.
- 16.
These processes, insofar as they affect the self-understanding of states, their leaders, and other relevant actors, occupy a central place in “constructivist” theories of international relations.
- 17.
This is likely the case, for instance, of prohibitions against the spanking of children, conduct formally criminalized in certain Scandinavian states.
- 18.
On how this may occur, see Raz 2009.
- 19.
We exclude from this generalization, of course, the countless (but politically inconsequential) professors of international law and academic theorists of global justice who do, to be sure, often accord such intrinsic authority to international law, even when it has not been ratified by states or rendered domestically justifiable through municipal constitutional procedure.
- 20.
The usual, lay sense of the term would probably be limited to intentional wrongdoing, whereas the act of causing disproportionate civilian harm—excessive “collateral damage,” as it is sometimes informally described—can be a war crime (attributable to an individual) or a violation of the laws and customs of war (attributable to states) if the wrongful actor merely knows that excessive civilian harm will result.
- 21.
Pauwelyn 2011, p. 3.
- 22.
A functionalist explanation is one that sees institutions as coming into being because of the systemic functions they serve, that is, apart from the interests, ideals, and intentions of those who might create, or resist the creation, of such institutions. On the failures of functionalism as social explanation, see Elster 1994.
- 23.
MacFarquhar 2010 (“Approximately 500 women were raped in eastern Congo in July and August, demonstrating that both rebel militias and government troops used sexual violence as a weapon, two U.N. officials said Tuesday.”).
- 24.
To observe this success in rule-creation is not to deny, of course, the frequent failure in implementing such norms, often owing to constraints of Realpolitik. As a leading defense counsel in international prosecutions rightly observes, “international criminal justice still operates selectively within the cracks that international politics have opened up for it.” Mettraux 2010 at http://www.internationallawbureau.com/blog/?p=1457. See also Allen 2010 (noting how Sudan’s President Omar Al Bashir, though indicted by the International Criminal Court, travels officially to several other African states that have ratified the Court’s Statute, which obligates them to honor the Court’s extradition orders).
- 25.
- 26.
Conversely, neither do the proponents of these atrocity-responsive projects disclose any urgent desire to resist the clutches of juridicizing encroachment, seen as some latent evolutionary process with the wind of history at its tail. To be sure, some proponents occasionally display a certain doubt about whether international law and international courts ultimately have much to offer in furtherance of their efforts. They pose to themselves, in other words, many of the same questions this inquiry also poses.
- 27.
- 28.
These would presumably include prohibition of the death penalty, the criminalization of hate speech, even perhaps a human right to economic inequality, on some accounts.
- 29.
The concern from this perspective is the potential capacity of unelected, life-tenured federal judges to incorporate what they take to be customary international law—on an indulgently capacious and ideologically-driven conception of such doctrine—into U.S. law by way of the notion of federal common law.
- 30.
- 31.
- 32.
In 2005, a UN General Assembly resolution endorsed the concept of a “responsibility to protect,” though the nature and terms of this duty remained ill-defined by that document. UN General Assembly 2010.
- 33.
See, e.g., Shaffer and Pollack 2010.
- 34.
Pound 1910, pp. 12, 20-1.
- 35.
See generally Hertogh 2009; Selznick 1968, pp. 50, 55 (writing of “incipient law…implicit in the way in which public sentiment develops or in an increasingly stabilized pattern of organization…a compelling claim of right or a practice so viable and so important to a functioning institution as to make legal recognition in due course highly probable”).
- 36.
Webber 2009, pp. 201–203.
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Osiel, M. (2014). The Uncertain Place of Purge Within Transitional Justice, and the Limitations of International Law in the World’s Response to Mass Atrocity. In: Israël, L., Mouralis, G. (eds) Dealing with Wars and Dictatorships. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-930-6_15
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